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Wisconsin's Nuclear Option

Gov. Walker can use a little-known but constitutional maneuver to break the impasse over unions’ rights. John Avlon on how Walker can get his way even with Democrats boycotting the vote.

UPDATE:
Wisconsin Senate Republicans voted to strip state workers of their collective bargaining rights on Wednesday. The Democratic senators’ presence was not required after the GOP separated the measure from a spending package so that it no longer required a quorum. The final vote was 18-1, with Republican Dale Schultz casting the only vote against the bill. The move could come back to bite Republicans: Polling showed citizens of Wisconsin, by a two-to-one majority, were
expecting a compromise.

A little-noticed provision in the
Wisconsin State Constitution—Article 8, Section 8—allows non-fiscal bills to be passed by a simple majority of state legislators, rather than the 3/5th threshold that drove Democratic state senators to Illinois in hopes of denying the Republican Governor the ability to go forward with collective bargaining reform as part of his proposed budget cut package.

This means that if the collective bargaining were delinked from the budget measures and put forward as a separate bill, it could be passed with 51 percent of the legislators—and without Democrats’ participation.

"In layman's terms, what Article 8, Section 8 says is that if you don't have a fiscal bill, then a quorum is a [simple] majority,” Robert Lang, Director of the State of Wisconsin’s Legislative Fiscal Bureau, explained to me. “If the collective bargaining portion were delinked, I believe that could be accomplished."

"If he [Governor Walker] separated the collective bargaining issues into a stand-alone bill a simple majority would be sufficient for a quorum, which he would have with the Republicans," added Terry C. Anderson, director of the non-partisan Wisconsin Legislative Council. Anderson cautioned that if any fees or appropriations were included in the collective bargaining provision, they would need to be excised before moving forward with fewer than 20 senators present.

“I would guess Senators are trying to figure out what token gesture, maybe a procedural consideration, allows Democrats to save face."

"This has dragged on so long and with all the continuing attention Wisconsin has received, I'm surprised this hasn't come up more in public," said Brett Healy, President of the Madison-based
John K. MacIver Institute for Public Policy. "[Because] Walker's administration hasn't talked about it publicly or actually begun the process of splitting the bill, it would suggest that they are making some progress in getting the missing Democratic senators to consider coming back to Madison. Senate Democrats need something to point to so they can tell their constituents, ‘we ran off and got this in return.’ I would guess Senators are trying to figure out what token gesture, maybe a procedural consideration, allows Democrats to save face."

Wisconsin is deep in uncharted territory with this budget battle—Democrats are in self-imposed exile and the Republican Party is in charge of a statehouse that has become a
nationally televised street theater stage in recent days. I contacted the Republican Governor of the 1990s, welfare reform pioneer
Tommy Thompson, to get his perspective on the budget impasse and collective bargaining reform.

“They should come home, lick their wounds and get back to business,” he said, referring to senate Democrats. “They can't remain out of state indefinitely. For the first part, they've got to come back and collect their paycheck.”

“I happen to support the governor in what he is doing,” Thompson offered. “Do I think I would have done this [constrict collective bargaining]? No. But then I never had to face a $3.6 billion budget gap.”

The fact that this obscure but powerful parliamentary maneuver has remained unused also suggests the political risks that could come with unleashing this nuclear option.

First, Governor Walker has made closing the $3.6 billion two-year budget gap the rationale for curtailing collective bargaining. It is more accurate to say that collective bargaining reform would give him more room to maneuver on future budgets and structural deficits. Separating the measures would be a de facto admission that the budget gap could be closed with the help of already-agreed-on Democratic concessions on pension and healthcare payments. “Clearly, some in the Republican caucus feel more comfortable supporting the combined bill," explains Brett Healy.

Second, deployment of this nuclear option might alienate Democrats even more—if that were possible—poisoning the well for future negotiations on other issues. Wisconsin is considered a swing state, but the last time it voted for a Republican presidential candidate was Reagan in 1984. Last year’s defeat of liberal stalwart U.S. Senator Russ Feingold by conservative newcomer Ron Johnson was part of a national sea-change, but it does not mean that the character of the state changed overnight. Walker and his conservative allies are right to point out that the public sector union salaries and benefits are now more generous than their private sector counter-parts—and that only 26-states have full collective bargaining rights for public sector workers. Nonetheless, Walker’s perceived ideological rigidity (he described a Democratic ally as a pragmatist and ‘not one of us’ to the man he thought was David Koch in a now infamous prank call) could backfire badly with the 27 percent of Wisconsin voters who are independents.

There is one recent political parallel that might give Walker a sense of calm in the storm. Indiana Governor Mitch Daniels suspended collective bargaining by executive order his first day on the job six years ago, in part to deal with a budget crisis. His popularity briefly plummeted but it recovered as he established control over the state budget in tough times, saving money through some of the efficiencies gained by the reduction in red tape. Daniel’s record of fiscal responsibility has made him an intriguing dark horse candidate for the presidency.

Scott Walker doesn’t deserve to have White House dreams in his eyes. His talk of making history in Wisconsin seems perilously disconnected to his day-to-day responsibility of just getting government to work. Nonetheless, this audacious parliamentary maneuver would allow him to achieve collective bargaining reform while breaking the Dairy State deadlock.